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2025 DIGILAW 593 (AP)

Kuchipudi Rama Rao v. Kalagara China Kondaiah

2025-04-10

K.MANMADHA RAO

body2025
JUDGMENT : 1. This civil revision petition is preferred aggrieved by the order dated 27.02.2025 passed in IA No.763 of 2024 in AS No.2 of 2023 on the file of the IX Additional District Judge, West Godavari District at Kovvur (for short “the Trial Court”). 2. The petitioner herein is the defendant and the respondent herein is the plaintiff. The respondent/plaintiff filed suit in OS No.104 of 2019 against the petitioner/defendant based on promissory note and the said suit was decreed in favour of the respondent/plaintiff on 02.07.2022. Aggrieved by the said judgment and decree, the respondent/plaintiff filed EP No.17 of 2024 before the Executing Court for attachment. If the respondent succeed in his illegal efforts, the petitioner will put to irreparable loss. Therefore, the petitioner filed the impugned IA No.763/2024 and the same was allowed subject to deposit of 1/4th of decree amount by the petitioner/J.Dr. on or before 13.03.2025. Proceedings in EP No.17/2024 in OS No.104/2019 on the file of I Additional Civil Judge (Junior Division), Kovvur shall stand stayed from the date of deposit of 1/4th of decree amount by the petitioner/J.Dr. If the petitioner/J.Dr failed to comply the condition precedent for operation of stay, the execution Court is at liberty to proceed with the E.P. Challenging the same the present civil revision petition came to be filed. 3. Heard Sri Yadavalli Ramesh, learned Counsel appearing for the petitioner and Sri Siva Rama Krishna Kolluru, learned Counsel appearing for the respondent. Perused the material on record. 4. On hearing, learned Counsel for the petitioner submits that the IX Additional District Judge failed to consider while passing the impugned order dated 27.02.2025 in directing the petitioner/J.Dr., to deposit 1/4th of the decree amount on or before 13.03.2025, that property worth of Rs.1,79,40,000/- of the petitioner/J.Dr., was already under attachment of the Additional Junior Civil Judge, Kovvur (for short “the Trial Court”) as per orders in IA No.334 of 2019 in OS No.104 of 2019. He submits that the Trial Court failed to consider that substantial loss would cause to the petitioner/J.Dr., if the execution Court is allowed to sell the properties more worth than the decree amount. He submits that the Trial Court failed to consider that substantial loss would cause to the petitioner/J.Dr., if the execution Court is allowed to sell the properties more worth than the decree amount. It also failed to observe that attachment of the properties of the petitioner/J.Dr., before judgment under Order 38 Rule 5 of CPC will amounts to security under Order 41 Rule 5(3)(c) of CPC for the due performance of the decree as may ultimately binding upon him. He further submits that the Trial Court ought to have consider while passing the impugned order that all the properties of the petitioner/J.Dr., is under attachment of Court even before passing of the decree and the petitioner could not avail any amount from the known persons or banks. He further submits that the Trial Court has also failed to consider that the petitioner herein filed a petition under Section 45 of the Indian Evidence Act to send the promissory notes for comparison with his admitted signatures and the same is pending for disposal and not filing the counter from 01.04.2024. 5. Per contra, learned Counsel appearing for the respondent submits that the petitioner filed EA No.334/2019 in OS No.104/2019 and that the Trial Court ordered notice under Order 38 Rule 4 of CPC on 19.03.2019 and that the petitioner failed to comply the order passed in IA No.334 of 2019 by providing third party security and thereby the suit schedule property was attached and attachment was effected on 23.04.2019. He further submits that the petitioner also filed IA No.35/2024 in EP No.17/2024 and the same was dismissed on 02.01.2025 on the ground that the petitioner is not entitled for grant of stay. Therefore, learned Counsel prays to dismiss the civil revision petition. 6. He further submits that the petitioner also filed IA No.35/2024 in EP No.17/2024 and the same was dismissed on 02.01.2025 on the ground that the petitioner is not entitled for grant of stay. Therefore, learned Counsel prays to dismiss the civil revision petition. 6. To support his contentions, learned Counsel for the respondents has placed reliance on a decision of the erstwhile the High Court of Andhra Pradesh at Hyderabad reported in Medisetti Ravi Babu and others v. Pramida Chit Fund Private Limited and others, MANU/AP/1345/2002, wherein it was held that: “This apart I do not see any error in exercise of jurisdiction of the Appellate Court in imposing a condition for deposit of half the decretal amount and Courts as a condition for granting stay of execution of the decree against them, inasmuch as Rule 5 of Order 41, CPC empowers the Appellate Court to impose conditions for staying execution of the decree of the Trial Court. Here I feel it relevant to mention that the revision petitioners ought to either deposit the amount disputed in appeal or furnish security for that amount as a condition precedent for maintaining the appeal in view of sub-rule (3) of Rule 1 of Order 41, CPC. Obviously since revision petitioners did not comply with the said Rule 3 of Order 41, CPC only the Appellate Court must have passed the order impugned in this revision. The object of introducing sub-rule (3) of Rule 1 of Order 41, CPC is to prevent the debtors delaying payment of amounts due to their creditor and to safeguard the interest of the creditor. But unfortunately the said sub-rule is followed more in breach than in practice. If Appellate Courts enforce Rule 1(3) of Order 41, CPC debtors harassing the creditors by filing frivolous appeal can be prevented, and the object with which the said sub-rule was introduced by way of 1977 Amendment to CPC can be achieved. 6. For the above reasons, I find no merits in this revision petition and hence the same is dismissed. The revision petitioners, however, are granted time till the end of January, 2003 for depositing the amount ordered to be deposited by the learned 1st Additional District Judge.” 7. Perused the material on record. 8. 6. For the above reasons, I find no merits in this revision petition and hence the same is dismissed. The revision petitioners, however, are granted time till the end of January, 2003 for depositing the amount ordered to be deposited by the learned 1st Additional District Judge.” 7. Perused the material on record. 8. The respondent/plaintiff filed a suit in OS No.104 of 2019 before the I Additional Junior Civil Judge’s Court, Kovvur, for recovery of money basing on the promissory note. The same was decreed. Against the same, the petitioner herein filed AS No.2 of 2023. Admittedly, the respondent/plaintiff filed EP No.17 of 2024 wherein the attachment effected against the property before judgment. The petitioner herein apprehends proclaiming the sale of E.P. schedule property pending disposal of the appeal. Having regard to the same, the Trial Court decreed the suit with costs for an amount of Rs.17,52,877.50 ps., with interest @ 12% p.a., from the date of suit till the date of decree and with subsequent interest @ 6% p.a., from the date of decree till the date of realization on the principal amount of Rs.11,93,000/-. Considering the said facts and circumstances, the Trial Court has granted stay of all further proceedings in EP No.17 of 2024 in OS No.104 of 2019 on the file of I Additional Civil Judge (Junior Division), Kovvur subject to condition that the petitioner/J.Dr., shall deposit 1/4th of decree amount. 9. As per Section 132 of Contract Act which is in force from 01.09.1872, i.e., long prior to the said decision, knowledge per se of the creditor that one out of the joint promisers is a principal debtor and the other is surety is not enough, to enforce such a right unless there is a specific agreement between the surety and the creditor that principal debtor only would be made liable in the first instance, before proceeding against the surety. If no such agreement is in existence, the creditor can proceed against the surety as if he is a principal debtor, without trying to realise the debt from the principal debtor. 10. In the present case it is not the case of the revision petitioner that there is an agreement between him and the respondent. Therefore, in view of Section 132 of Contract Act respondent has a right to proceed against the revision petitioner also. 10. In the present case it is not the case of the revision petitioner that there is an agreement between him and the respondent. Therefore, in view of Section 132 of Contract Act respondent has a right to proceed against the revision petitioner also. Even as per the rule in Rouse v. Bradford Banking Company, (1894) AC 586, the surety can exercise his right to ask the creditor to proceed against the principal debtor in the first instance before he is asked to pay the same, subject to his undertaking to indemnify the creditor for the loss, etc., but not after the creditor obtained a decree against both the principal debtor and surety. Therefore, respondent has a right to enforce the decree against revision petitioner also as if he is principal debtor. 11. This apart this Court do not see any error in exercise of jurisdiction of the Appellate Court in imposing a condition for deposit of 1/4th of decree amount and Courts as a condition for granting stay of execution of the decree against him, inasmuch as Rule 5 of Order 41, CPC empowers the Appellate Court to impose conditions for staying execution of the decree of the Trial Court. 12. It is relevant to mention that the revision petitioner ought to either deposit the amount disputed in appeal or furnish security for that amount as a condition precedent for maintaining the appeal in view of sub-rule (3) of Rule 1 of Order 41, CPC. Obviously since revision petitioner did not comply with the said sub-rule (3) of Order 41, CPC only the Appellate Court must have passed the order impugned in this revision. 13. The object of introducing sub-rule (3) of Rule 1 of Order 41, CPC is to prevent the debtors delaying payment of amounts due to their creditor and to safeguard the interest of the creditor. But unfortunately the said sub-rule is followed more in breach than in practice. If Appellate Courts enforce Rule 1(3) of Order 41, CPC debtors harassing the creditors by filing frivolous appeal can be prevented, and the object with which the said sub-rule was introduced by way of 1977 Amendment to CPC can be achieved. 14. Therefore, in view of the foregoing discussion, this Court found no merit in the civil revision petition and devoid of merits and the same is liable to be dismissed. 14. Therefore, in view of the foregoing discussion, this Court found no merit in the civil revision petition and devoid of merits and the same is liable to be dismissed. However, the revision petitioner is granted four weeks time for depositing the 1/4th amount ordered to be deposited by the IX Additional District Judge, West Godavari at Eluru. There shall be no order as to costs. 15. As a sequel, miscellaneous applications pending, if any, shall also stand closed.